Citation Nr: 21026323 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-65 300 DATE: April 30, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. REMANDED Entitlement to service connection for lightning strike residuals is remanded. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for a psychiatric disability is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for discoid lupus is remanded. Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. The Veteran’s right knee osteoarthritis did not onset in service, within a year of service, or is otherwise directly related to service. 2. The Veteran’s left knee osteoarthritis did not onset in service, within a year of service, or is otherwise directly related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 until December 1965. On appeal is a May 2017 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). A Board hearing was held in October 2019; a transcript is associated with the claims file. In January 2020, the Board remanded these claims to obtain VA examinations and the Veteran’s service records. The Board also remanded the claim of entitlement to service connection for numbness in the hands and toes. While on remand, the RO granted service connection for bilateral upper and lower peripheral neuropathy. As this constitutes a full grant of the benefits sought, those issues are no longer apart of the appeal currently before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if “the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage v. Gober, 10 Vet. App. 488, 498 (1997). 1. Entitlement to service connection for a right knee disorder 2. Entitlement to service connection for a left knee disorder The Veteran contends that his right and left knee disabilities are related to service, to include herbicide exposure and an in-service lightning strike. Per a March 2020 VA examination, the Veteran is diagnosed with bilateral knee osteoarthritis. The first Shedden element, that of a current disability, is thus satisfied.  The Board additionally concedes the existence of an in-service event with regard to all claims, either via exposure to herbicides or an in-service lightning strike while the Veteran was stationed at Fort Benning. The Veteran is credible and consistent in his reports of this event. Furthermore, at the Veteran’s October 2019 hearing, he testified that he was born with flat feet which required orthotics, that he did not use orthotics in service, and that he started to suffer from knee pain in service. Thus, the second Shedden element is satisfied.  As such, the remaining determination is whether his current knee disability is etiologically related to this in-service trauma. At a March 2020 VA examination, the Veteran reported that he stepped out of his car and his knee collapsed, after which he needed surgery in about 2005. The VA examiner opined that the Veteran’s bilateral knee osteoarthritis was less likely than not related to service. She reasoned that herbicide exposure has not been found to have a connection to arthritis. In addition, she explained that the Veteran did not seek treatment for or complain of a knee disability in service. She noted March 2006 post-service treatment records which state that the Veteran’s knee pain was related to his reported fall stated above. In an August 2020 addendum opinion, the VA examiner stated that this condition is not a residual of the in-service lightning strike. First, the Board will address presumptive service connection. The Board observes that osteoarthritis is not associated with herbicide agent exposure for purposes of the presumption. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e). Accordingly, service connection on a presumptive basis is not warranted. However, a non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to an herbicide agent. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Upon review of the above evidence, the Board finds that the Veteran is not entitled to direct service connection for his right or left knee osteoarthritis because the third Shedden element of service connection, that of a causal relationship between the Veteran’s present disabilities and service, is missing. The Board finds the March 2020 and August 2020 VA medical opinions to be of great probative value as they are well-reasoned and supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  In these opinions, the examiner stated that the Veteran’s arthritic changes to his knees were not caused by service, to include herbicide exposure and the in-service lightning strike.  Furthermore, the VA examiner persuasively reasoned that the Veteran did not seek treatment for or complain of a knee disability in service. Indeed, while the Veteran testified that he had knee pain in service, he stated that he did not seek treatment for a knee disability in service. These conclusions are not contradicted by any medical evidence of record. The Board also considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. Here, however, although acknowledging that the Veteran sustained in-service trauma, the Board does not find that any knee symptomatology following that in-service injury developed into a chronic disability subject to presumptive service connection. Although the Veteran testified that he began having pain in service, the Board notes that the earliest evidence regarding official treatment for a knee disability in the claims file is from March 2006 documenting his slip and fall injury; this story is reiterated by the Veteran at the March 2020 VA examination. The date of this diagnosis is decades after discharge from service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim, just not the only or sole factor).  The Board further finds that the evidence does not show that the Veteran’s bilateral knee osteoarthritis manifested during service or within one year of his separation from service. Furthermore, the Board recognizes the statements from the Veteran regarding the relationship between his bilateral knee disability and active service. However, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examinations and post-service treatment records indicating that the Veteran’s arthritis was actually first manifested and diagnosed decades after service separation. To the extent that the Veteran relates his bilateral knee disability to his flat-feet, service connection on this basis cannot be granted as the Veteran is not service-connected for a flat feet disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Lastly, the Board notes that these claims are not inextricably intertwined with the Veteran’s remanded claim for lightning strike residuals, to include his right shoulder pain and neck disabilities. While the Veteran alleges that his knee osteoarthritis is directly related to the lightning strike, he does not allege, nor does the medical evidence show, that his knee osteoarthritis is secondarily related to any other right shoulder or neck disability that he contends were caused by the lightning strike. As such, these claims are mutually exclusive. In sum, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claims for a right and left knee disability on a direct, presumptive, or secondary basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claims must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for lightning strike residuals is remanded. March 2017 CAPRI records indicate that the Veteran is diagnosed with degeneration of cervical intervertebral disc. December 2018 CAPRI records note that the Veteran noticed his right shoulder pain in 1963 when he was drafted and over the years it has just gotten worse. These medical records also report that the Veteran was struck by lightning and had a neck surgery in 1989. June 2019 CAPRI records also show that the Veteran was treated for cervical myelopathy and dysphagia and underwent neck surgery in May 1991 with a delayed dislocation of bone graft which had to be repeated in August 1991. The Veteran relates his right shoulder pain and neck disabilities to his in-service lighting strike. At his October 2019 hearing, he testified that he experienced neck stiffness and pain while stationed in Vietnam and after service separation, but did not seek treatment until about 1973. At a March 2020 VA examination, the VA examiner found that the Veteran did not have any muscle injuries and, as such, failed to render a nexus opinion. However, as the Veteran is diagnosed with degeneration of cervical intervertebral disc, cervical myelopathy, dysphagia, and right shoulder pain, to which he specifically relates to the in-service lightning strike, remand is necessary for an addendum medical opinion for these disabilities. 2. Entitlement to service connection for GERD is remanded. The Veteran participated in a March 2020 VA examination for his GERD. Therein, the VA examiner opined that the Veteran’s GERD was less likely than not related to service. The VA examiner noted that the Veteran was exposed to herbicides, that he was not seen or treated for GERD in service, and that the in-service lighting strike could not have caused this disability as it happens when the lower esophageal sphincter does not tighten or close properly. However, while the VA examiner noted the Veteran’s exposure to herbicides, she failed to discuss whether it directly caused the Veteran’s GERD as required by the January 2020 Board decision. Remand is therefore necessary to obtain an addendum medical opinion as to whether the Veteran’s GERD was directly caused by his exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Furthermore, at his October 2019 hearing, the Veteran testified that after his neck surgeries, he began to have increased heartburn and the inability to swallow. Indeed, the Veteran is diagnosed with dysphagia per June 2019 CAPRI records. Therefore, if the Veteran become service connected for any of the disabilities outlined in the section above, a VA examiner must opine whether his GERD is caused or aggravated by them. Harris v. Derwinski, 1 Vet. App. 180 (1991) (explaining that two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 3. Entitlement to service connection for a psychiatric disability At a March 2020 VA examination, the Veteran was diagnosed with other specified trauma and stressor related disorder. At the VA examination, the Veteran reported being sexually and physically assaulted as a child by two different adults from ages 4 to 13 years old. The VA examiner opined, among other things, that the most stressful event that affects him was the childhood sexual trauma and that it was less likely than not that this psychiatric disability began in service or is related to service, to include the in-service lightning strike. Given the above, the Board finds that a remand is necessary to obtain an addendum medical opinion. The Board finds the VA examiner’s rationale insufficient. The examiner indicated that the Veteran’s psychiatric disability was related to pre-service childhood sexual trauma and then concluded that his active service did not cause it. The Board finds this rationale to be based on the incorrect standard as no psychiatric disorder was noted at the Veteran’s service entry. Thus, while the Veteran may have had experiences before service that contributed to his acquired psychiatric disorder, it is not clear that he had a diagnosable psychiatric disorder at enlistment.  Therefore, an addendum opinion is needed. The Board notes that a January 2017 VA examiner diagnosed the Veteran solely with insomnia and opined that this disability was at least as likely as not related to service as he “experiences intrusive thoughts related to Vietnam once or twice per week . . . [and] continues to actively avoid thinking and talking about Vietnam.” The Veteran is separately service connected for insomnia. Upon remand, this information must be considered and discussed. 4. Entitlement to service connection for a right ankle disability is remanded. At a March 2020 VA examination, the Veteran reported suffering an ankle fracture in 1961, which was before his period of active duty. The VA examiner opined that the Veteran’s right ankle disability was less likely than not related to service as this ankle fracture occurred before he joined the military. Given the above, clarification is necessary to obtain a medical opinion regarding whether the Veteran’s right ankle disability pre-existed service and, if so, was aggravated by service. 5. Entitlement to service connection for cataracts is remanded. At a March 2020 VA examination, the VA examiner opined that the Veteran’s cataracts were less likely than not related to the in-service lightning strike. However, as required by the January 2020 Board decision, she failed to opine whether it was directly related to the Veteran’s presumed herbicide exposure. Remand is thus necessary to comply with the January 2020 Board directives. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Entitlement to service connection for discoid lupus is remanded. 7. Entitlement to service connection for a skin disorder is remanded. The Veteran contends that his current skin disorder is a result of service. At his October 2019 hearing, he argued that his autoimmune skin disability was related to his sleeping in a tent outdoors at Fort Benning and Vietnam. Specifically, the Veteran contended that the humidity and his exposure and bites from ticks and mosquitos while serving at these stations. The Veteran additionally stated that his skin condition started while he was in Vietnam as he experienced “little liquid skin bubbles” and continued thereafter. The March 2020 VA examiner opined that it was less likely than not that the Veteran’s lupus was related to service. The VA examiner reasoned that, while lupus among military population is more prevalent, there is no link between herbicide exposure and discoid lupus. The VA examiner additional reasoned that a lightning strike does not cause discoid lupus. She explained that discoid lupus does not have one clear cause, but possible ones include hormones, genetic factors, and environmental triggers. Examples of environmental triggers include exposure to ultraviolet light and stress. The VA examiner also stated that the Veteran was not treated for, or complained of, lupus during active duty. The Board finds that remand is necessary to consider the Veteran’s lay reports stated above, to include that his skin disability onset in service while in Vietnam and is possibly related to exposure and bites from ticks and mosquitos. Such information was not considered by the March 2020 examiner. The matters are REMANDED for the following action: Obtain addendum VA medical opinions regarding the etiology of the Veteran’s lightning strike residuals, to specifically include degeneration of cervical intervertebral disc, right shoulder pain, cervical myelopathy, and dysphagia, GERD, psychiatric disability, right ankle disability, cataracts, and discoid lupus skin disability. The entire claims file, to include a copy of this remand, must be reviewed in conjunction with the opinion. If the VA examiner finds that new VA examinations are warranted, they should be arranged. The examiners must provide separate, well-detailed responses to the following: 1. Lightning Strike Residuals The examiner must clarify all residual disabilities resulting from the Veteran’s in-service lightning strike. For each such disability, to include degeneration of cervical intervertebral disc, right shoulder pain, cervical myelopathy, and dysphagia, the VA examiner must opine whether it is at least as likely as not related to service, to include the in-service lightning strike at Fort Benning, during service. The examiner must discuss the Veteran’s lay contentions regarding the origin of such disabilities, especially his October 2019 testimony. The VA examiner must also discuss the December 2018 and July 2019 CAPRI records reflecting a current diagnosed disability. 2. GERD Whether it is at least as likely as not that the Veteran’s GERD onset in service, within one year of service separation, or is otherwise related to service, to specifically include exposure to herbicides or the in-service lightning strike at Fort Benning. If necessary, opine whether it is at least as likely as not that the Veteran’s GERD was caused or aggravated by the Veteran’s service-connected residuals of lightning strike, to include degeneration of cervical intervertebral disc, right shoulder pain, cervical myelopathy, and dysphagia. The VA examiner must discuss the Veteran’s lay statements as to the origin of this disability, especially his October 2019 testimony. 3. Psychiatric Disability The examiner should identify each psychiatric disability experienced by the Veteran during the appeal period. If PTSD is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not that PTSD is due at least in part to a verified in-service stressor event or fear of hostile action during service. The examiner must specifically discuss the Veteran’s diagnosis of insomnia, for which he is separately service connected, and must clarify whether any psychiatric disorder is present aside from his insomnia. For any such separately diagnosed disorder, the examiner must offer an opinion as to whether any diagnosed acquired psychiatric disorder both (1) clearly and unmistakably preexisted service, and, if so, (2) clearly and unmistakably was not aggravated beyond its natural progression by service. For purposes of this analysis, aggravation is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process.  The VA examiner is asked to specifically comment on the January 2017 VA examination and March 2020 VA examiner’s discussion of the Veteran’s pre-service childhood sexual assault, and the Veteran’s lay statements regarding the origin of this disability, especially his October 2019 testimony. If making such a finding in this case, the examiner must explain in detail the clear and unmistakable evidence relied upon in the record on which to base this conclusion. If the answer to both questions above is no, the examiner should provide an opinion as to whether it is at least as likely as that any separately diagnosed psychiatric disorder had its onset in service or is otherwise related to service, to include exposure to herbicides or the in-service lightning strike at Fort Benning.  4. Right Ankle Disability The examiner must provide a through opinion as to whether the Veteran’s right ankle disability clearly and unmistakably existed prior to service. When answering this question, the VA examiner must discuss the Veteran’s reports of an ankle fracture in 1961. For any right ankle disability found to clearly and unmistakably pre-exist service, the examiner must then also opine whether such was also clearly and unmistakably NOT aggravated during military service. If making such a finding in this case, the examiner must explain in detail the clear and unmistakable evidence relied upon in the record on which to base this conclusion. In the alternative, if the Veteran’s right ankle disability did not clearly and unmistakably pre-exist service, the VA examiner must opine as to whether it is at least as likely as not that the Veteran’s right ankle disability onset in service, within one year of service, or is otherwise related to service, to include exposure to herbicides or the in-service lightning strike at Fort Benning. In rendering an opinion, the VA examiner must discuss the Veteran’s lay statements regarding the origin of this disability, especially his October 2019 testimony. 5. Cataracts Whether it is at least as likely as not that the Veteran’s cataracts began in service, within one year of service, or are otherwise related to service, to include exposure to herbicides or an in-service lightning strike at Fort Benning. In rendering an opinion, the VA examiner must discuss the Veteran’s lay statements regarding the origin of this disability. 6. Skin Disorder The examiner must clarify all of the Veteran’s skin disabilities, to include discoid lupus. For each diagnosed skin disability, the examiner must opine as to whether it is at least as likely as not that the disability began in service, within one year of service, or is otherwise directly related to service, to include exposure to herbicides, an in-service lightning strike at Fort Benning, or exposure to ticks and mosquitos. In rendering an opinion, the VA examiner must discuss the Veteran’s lay statements regarding the origin of this disability, especially his October 2019 testimony, that it onset in service and is related to exposure and bites from ticks and mosquitos. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.